Health system flounders as complaint bodies defend their agendas

Disciplinary action rather than a conciliatory process has been the norm in NSW, writes David Thomas.

For all its detail and depth, the Walker report on patient deaths in the Campbelltown and Camden hospitals does not answer a basic question: why did the Health Care Complaints Commission's initial report fail to name the doctors who allegedly were responsible?

The answer does not lie in conspiracies, or in malign influences, but rather in the way the battlelines have been drawn in a low-intensity ideological war which has been going on in the health complaints area since its inception.

The area is a new phenomenon. This year marks only the 20th anniversary of the formation of the world's first body specifically dedicated to dealing with health complaints, the complaints unit of the NSW Health Department.

Since then, the industry has expanded significantly. All states and territories have health complaints commissions, and have been obliged to have them in terms of the Medicare agreements between states and the Commonwealth.

But precisely because they are so new, there is still disagreement on their aims and functions, and there is an ideological conflict between them on this point. Up to the time that Amanda Adrian was appointed to head the HCCC three years ago, it was a case of NSW v the Rest.

NSW pursued what can be termed a "prosecutorial agenda" in that it had the power, and used it frequently, to investigate and initiate disciplinary action against erring doctors by legal means. For instance, in cases brought before the Medical Tribunal, which can result in doctors being deregistered, it is the HCCC which undertakes the case for the prosecution.

The other side in the ideological complaints war is occupied by the proponents of what is termed the "conciliation agenda", and they control the commissions in all the states and territories outside NSW.

They disapprove of the NSW prosecutorial approach, believing that a more effective and less costly way of dealing with complaints, particularly against individual practitioners, is to use a system of conflict resolution in terms of which professionally trained conciliators help aggrieved patients and doctors work through the issues which have led to a complaint.

One of the arguments for this process is that by not naming or punishing doctors, it makes them less defensive and more willing to admit such errors.

The adoption of the prosecutorial agenda in NSW was driven by two factors. The first was the determination by the then minister, Laurie Brereton, who established the original complaints unit in 1984, to prosecute doctors guilty of "medifraud".

The second was that the first two directors of the unit, Philippa Smith and Merrilyn Walton, were both consumer advocates. While they quickly discarded Brereton's focus on medifraud and replaced it with redress of patient complaints, they kept his prosecutorial approach.

Partly because of Walton's advocacy, the law relating to medical practice was changed in a wholesale fashion in 1987, giving the complaints unit much greater powers. The AMA protested vehemently, but Labor and Liberal administrations defended and encouraged the prosecutorial work of the unit, which became the largest and best-funded body of its kind in Australia.

In 1994 the complaints unit was transformed into the Health Care Complaints Commission, making it even more powerful. But when Walton resigned three years ago, it seemed the prosecutorial agenda would gradually follow her out of the door.

The new commissioner, Amanda Adrian, disliked the prosecutorial agenda and she began to downgrade it in the work of the commission (although it was by no means eliminated). Under her leadership, the gap between the NSW approach and the other states began to narrow.

However, in the HCCC report on the Campbelltown and Camden hospitals, Adrian's determination to stick to her principles of avoiding naming and prosecuting individual doctors, and her insistence that it was the system and not individual medical staff at fault, resulted in her unceremonious dismissal by the State Government.

It could be cynically argued, of course, that she was sacked not because the Government particularly favours the prosecutorial agenda, but because putting the blame on doctors shifts the focus away from the Government's shortcomings in adequately resourcing hospitals. On this score, Adrian certainly had a good point, although it is also difficult to believe there was no individual responsibility for the bungles in the two hospitals.

Whatever the final outcome, the contents of the Walker report clearly indicate that the prosecutorial agenda is firmly back in the HCCC and will stay there for the foreseeable future. After all, the fate of the Carr Government could be dependent on that being the case.

Dr David Thomas is from the School of Public Health and Community Medicine at University of NSW and edited Medicine Called to Account: Health Complaints Mechanisms in Australasia.